ARIF KAMAL vs State Ss — 2022 CLD 902 KARACHI-HIGH-COURT-SINDH

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ARIF KAMAL VS State Ss. 4 & 5---Penal Code (XLV of 1860), Ss. 420, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Appreciation of evidence---Jurisdiction of Banking Courts---Prosecution case was that the accused being employee of Insurance Company prepared and approved fake and bogus claims in collusion and connivance with co-accused persons, which cheques in respect of such fake and bogus forged claims were paid into Bank accounts and withdrawn by bogus beneficiaries, which caused loss to the Insurance Company---In the present case, the main accused was an employee of an insurance company namely State Life Insurance Corporation (SLIC) who allegedly defrauded the insurance company by illegally authorizing claims to individuals/ organizations which were then paid into Bank accounts individuals/organizations and the same money was withdrawn by co-accused beneficiaries of the scam---None of the accused were bankers and there was no evidence on record that any person associated with any banking company played an illegal role in the fraud for instance illegally opening Bank accounts in the name of beneficiaries or knowingly allowing those Bank accounts to be operated by illegal beneficiaries---Loss was caused to the insurance company and not to the Banks or any of its customers---Since the complaint and the illegal acts had been carried out by persons not engaged in the business of banking prima facie the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance) did not apply to the accused persons unless the offences so charged could be found to have been committed, in respect of or in connection with the business of a Bank so as to bring the offences so charged within the definition of a scheduled offence---High Court observed that record showed that there was no allegation that either the Bank or any of its employees were a part of the scam who for instance illegally opened bogus accounts in favour of illegal beneficiaries---No banker had been sent up to stand trial for committing any illegality in respect of that case and the Bank officials appeared to have acted in a bona fide manner---No loss had been caused to the Bank and as such based on the particular facts and circumstances of that case, it could not see how the offences allegedly committed fell within the term in respect of or in connection with the business of a Bank---Offences were clearly related to the business of an insurance company and its employees who allegedly committed the illegality through which the Banks were an unwitting conduit performing there functions as they were obliged to do under the law and there own SOP's---Under said circumstances, the special Court under the Ordinance had no jurisdiction to hear and decide the such cases---Appeals were allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court.

ARIF KAMAL vs State Ss — 2022 CLD 902 KARACHI-HIGH-COURT-SINDH

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